All posts tagged Henning

Wayne State law professor and former federal prosecutor Peter Henning took special interest in a blog post penned by Chris Herring last week, involving whether and how charges might be brought against South Carolina governor Mark Sanford (pictured). Henning’s thoughts are below. Click here for earlier LB posts penned by Henning.

A recent Law Blog post discussed the problem facing South Carolina Attorney General Henry McMaster as he considers whether to charge Governor Mark Sanford for misuse of public funds stemming from Sanford’s jaunts down to Argentina. McMaster is running for Governor against Lieutenant Governor Andre Bauer, and filing charges against Sanford might elevate Bauer to the very office McMaster seeks, giving his opponent a boost. The AG has rejected calls for a special prosecutor, asserting that “Law enforcement and politics do not mix.”

While he’s right about that, it is the public perception that is just as important. This is a problem that state and local prosecutors face when called upon to consider charges against other elected officials. Most AGs and local district attorney’s are elected themselves, and many harbor ambitions for higher office. Sorting out the many potential conflicts that can arise makes it difficult for the public to believe the justice is being done an investigation of other elected officials is pursued – or dropped.

Earlier this week, the Ninth Circuit ruled that the drug-test records of more than 100 Major League Baseball players seized as part of an investigation into the use of steroids must be returned to the players’ union. Click here for the opinion; here for the LB post on the opinion.

The opinion garnered wide attention, largely because of the baseball-and-steroids issue. But Wayne State law professor and LB contributor Peter Henning finds the decision notable for another reason: it highlights the difficulties courts have in applying the “plain view doctrine” (described below) to situations involving computer-based searches. Click here for Henning’s past posts.

In a scene played out any number of times, federal agents wearing jackets emblazoned “FBI” on the back carry out boxes of documents and dollies loaded with computers from a company’s headquarters. In the case of a drug testing lab in California and Nevada, the search has generated an important decision in the Ninth Circuit, U.S. v. Comprehensive Drug Testing, Inc., that will restrict how the government searches computers in the future.

You might be a bit more familiar with the case when you understand that it involves the seizure of the urine samples and steroid test results of hundreds of major league baseball players. These were the tests revealing that, at least back in 2003, various players like Alex Rodriguez, Manny Ramirez, and over 100 others tested positive . . . Read More »

Despite the recent high-profile conviction of former congressman William Jefferson, it really hasn’t been a good stretch for federal prosecutors. The botched case against former Alaska senator Ted Stevens earlier this year was among the more high-profile examples of prosecutorial misconduct, but there have been several others in recent months.

Earlier this week, we got word of yet another gaffe by a federal prosecutors — this time out in San Francisco in the backdating case against former Brocade CEO Greg Reyes. (Click here for our post on the ruling; here for the Ninth Circuit opinion.) The Ninth Circuit vacated Reyes’s conviction on the grounds that a prosecutor mischaracterized the evidence during his closing statement.

But what precisely went wrong? How could a prosecutor possibly get himself into this position?

For a little help, we turned to Peter Henning, a professor at Wayne State University Law School in Detroit and a frequent LB contributor. Click here for his other posts. Writes Henning:

We’re used to the stirring closing arguments in which the prosecutor and defense lawyer make impassioned arguments to the jury before it heads off to decide the defendant’s fate. As the last words jurors hear from the champions of each side, closings carry particular weight. So when the government pushes too far by offering a false view of the evidence, then a court can respond by overturning a guilty verdict because of two of the most dreaded words any prosecutor can hear: prosecutorial misconduct.

The Department of Justice lost its trophy prosecution involving backdating of corporate stock options – remember back in 2005 when that was just about the worst thing a company could do? – precisely because the prosecutor falsely described what happened in his closing argument.

Let us explain: Reyes admitted at trial that he signed numerous documents awarding options to Brocade employees in which the option price was backdated, picking an amount that would result in a greater value for the options. The government charged him with falsifying Brocade’s books and records. One of Reyes’s defenses: that he thought the finance department was accounting for them properly; he didn’t intend to commit a crime.

In the closing argument, the prosecutor argued that Brocade’s finance Read More »

Wayne State law professor and LB contributor Peter Henning takes on the topic of calculating loss–federal style, at least–and how it might play out for New York lawyer Marc Dreier. Click here for previous Henning contributions.

Monday’s scheduled sentencing of disgraced attorney Marc Dreier for defrauding clients and investors of more than $400 million raises interesting questions regarding how much the amount of the loss should be factored into the punishment of a white collar criminal. The multi-billion dollar Ponzi scheme of Bernie Madoff resulted in a 150-year prison term, and in Dreier’s case the government is asking for nearly the same sentence, 145 years. (Click here for a previous LB post on the government’s filing.)

While the Federal Sentencing Guidelines call for life in prison for Dreier based largely on the amount of the loss, it is doubtful Dreier will receive anything close to that much prison time. The judge sentencing him is Jed Rakoff, who has been highly critical of the length of sentences under the guidelines, particularly in white collar crime cases. He wrote in United States v. Adelson… Read More »

Wayne State law professor and LB contributor Peter Henning has studied the filings in advance of the Bernie Madoff sentencing, slated for Monday, and weighs in below with an overview on how it’s likely to unfold. Click here and here and for earlier posts on the filings from Ike Sorkin, Madoff’s lawyer, and the government, respectively (each post contains links to the underlying filings). Click here for all of Henning’s LB contributions.

A sentencing proceeding usually follows a fairly well defined script in which the government gives its recommendation for the sentence, the defense makes its presentation — which can include statements from the defendant and witnesses — and, due to a recent change in the rules, victims then speak. After hearing the various parties, the judge presiding over the case, Denny Chin, will explain his legal analysis for the sentence and then announce the terms of the punishment. Here is a thumbnail of what is likely to occur at the sentencing hearing:

The Prosecutor’s Recommendation: The government is recommending . . . Read More »

Wayne State law professor and LB contributor Peter Henning has looked over the indictments filed on Friday in the Allen Stanford matter. Below he shares his thoughts on how the allegations against Stanford compare to those lodged against Bernie Madoff, who in March pleaded guilty to crimes surrounding a massive Ponzi scheme.

The indictment of R. Allen Stanford and four other defendants on conspiracy, mail/wire/securities fraud, and obstruction of justice charges is the latest in a handful of Ponzi-scheme allegations lodged amid the market collapse that began in 2008. Bernie Madoff stole all the headlines with his fraud that cost scores of investors their life savings. Is Stanford, whose firm is accused of costing investors “only” $7 billion, another Madoff?

The scheme Stanford is accused of is rather different from the one Madoff perpetrated. While Bernie promised modest returns, Stanford’s Certificates of Deposit . . . Read More »

The NBA finals may be over, but Wayne State law professor and Law Blog contributor Peter Henning still has the “Association” on the brain — at least one of its most visible and outspoken team owners, Mark Cuban, who owns the Dallas Mavericks. Cuban was charged by the SEC last fall for insider-trading relating to purchases and sales of shares of Mamma.com. Not only has Cuban maintained he did nothing wrong, but he’s played hardball with the SEC. Last month, he sued the SEC, claiming the agency is unlawfully withholding documents in the probe.

Writes Henning:

When the SEC brings a civil enforcement action, it usually enjoys a number of advantages that allows it to be successful in many of its cases. But when the opponent is a billionaire who likes nothing more than a battle, those advantages may evaporate. That may well be the case with the Commission’s insider trading suit against Dallas Mavericks owner Mark Cuban, who Forbes estimates to be worth over $2 billion.

The WSJ ran a story a few months ago on honest-services fraud. The author of the article, the erstwhile Law Blogger, Dan Slater, highlighted the fact that the federal honest-services fraud statute had been getting applied in an ever-broadening manner, from coaches to church officials to politicians — a trend that had raised the hackles of some judges.

The U.S. Supreme Court’s decision earlier this week to review the conviction of newspaper magnate Conrad Black (pictured) gives us reason to take another whack at the honest-services fraud issue. (Honest-services fraud charges were at the core of the case against Black.) So we called upon Wayne State’s Peter Henning, who churned out the piece below. (Click here and here for Peter’s previous Law Blog pieces).

Mail fraud is a staple of federal white collar crime prosecutions, covering a wide array of corporate misconduct along with public and judicial corruption. The use . . . Read More »

The following is the latest from Peter Henning (pictured), a professor at Wayne State University Law School in Detroit, who teaches courses on criminal law and procedure, professional responsibility and corporations. For Peter’s other Law Blog post, on prosecutorial discretion, click here.

Jesse Unruh, the Speaker of the California State Assembly in the 1960s, famously noted that “Money is the mother’s milk of politics.”* The lives of candidates and most elected officials revolve around raising money, and the ability to use one’s position to garner large contributions is seen as one of the significant perks of office.

All that money flowing through campaign coffers is awfully tempting to public officials who frequently view themselves as woefully underpaid, at least as compared to all those CEOs whose only recent accomplishments are in driving businesses into the ground.

We’re pleased to fold into the Law Blog offerings the writings of Peter Henning. Peter is a professor at Wayne State University Law School in Detroit, where he teaches courses on criminal law and procedure, professional responsibility and corporations. Prior to joining the Wayne State faculty, he worked as an attorney in the division of enforcement at the Securities & Exchange commission and in the criminal division of the Justice Department. He is a magna cum laude graduate of the Georgetown University Law Center.

It isn’t easy being a federal prosecutor these days, especially after the recent run of cases in which serious questions were raised about prosecutorial ethics.

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